Wednesday, 28 November 2012

Day 90: Prof. Proctor's guest lecture continues

Before leaving the Palais de Justice yesterday evening, the lawyers defending three "big tobacco" companies in the trial of the Quebec class action suits held a prolonged and unusual corridor huddle.

With Justice Riordan's decisions on two key questions in the air, and with the plaintiffs seemingly able to change their strategy daily, they had a lot to ponder. When the trial re-opened this morning, it was clear that some midnight oil had been burned.

More certainty, but no satisfaction for the defense

The first item of business happened out of court. The plaintiffs had indeed decided to withdraw the part of Mr. Proctor's report under review, and avoid the risk of Justice Riordan ruling to exclude it. (I will never know whether I would have been able to collect on the bottle of wine that was riding on his decision).

The second item of business was a renewed attempt by Suzanne Coté (on behalf of BAT/Imperial Tobacco Canada) to persuade Justice Riordan to block Mr. Proctor from adding any testimony to the trial record that went beyond his written report. (She failed to persuade him, although he gave her the courtesy of leaving the room for a short while before saying so).

So it was not until after 10:00 a.m. that Mr. Proctor was sworn in and Bruce Johnston began his last set of questions for his star witness.

A talking tour of tobacco history

Yesterday, Mr. Johnston had shown that the constraints put on Mr. Proctor's testimony (i.e. being limited to the expert reports of the industry historians) was not a real impediment to getting a wide-ranging perspective from this witness. Today he continued to use questions technically directed at Mr. Proctor's opinions about the industry's expert historians, but actually reviewing key themes in his claims against the companies.

As Mr. Proctor gave a concise review of 60 years' of tobacco industry history, Justice Riordan listened intently. So did the visitors and fans of Mr. Proctor who filled up the seating area located behind the plaintiff's benches. (Today was the first day that lawyers suing tobacco companies outnumbered the lawyers defending tobacco companies in the public gallery.)

From the Plaza Hotel to the Royal Montreal Golf Club

The 1953 meeting of tobacco industry CEOs at New York's Plaza Hotel is a starting point for many students of tobacco industry, but Justice Riordan listened to Robert Proctor's explanation of that meeting as if he was hearing it for the first time. He heard the witness explain this as the beginning of the "formal conspiracy" and the launch of Hill and Knowlton's campaign to push back against the scientific knowledge that smoking caused lung cancer.

Almost three months have passed since the record of a similar Canadian meeting was filed in this case (Exhibit 550). It was at the Royal Montreal Golf Club in August 1963, that Carl Thomson of Hill and Knowlton and TV Hartnett ("chair of the 'we need more research' part of the conspiracy) met with Imperial Tobacco executives to discuss how they would manage the upcoming Conference on Smoking and Health convened by then Minister of Health, Judy LaMarsh. The parallels between this meeting and the the New York Plaza meeting were starkly drawn. "I view this document and statement in this document as evidence of the extension of the American conspiracy into Canada."

Spreading doubt and false beliefs

Robert Proctor explained  how the industry's fears - fear of fewer smokers, fear of falling stock values, fear of litigation - drove their decision-making. He outlined their efforts to spread doubt, and to disseminate denialist publications. He revealed that the industry had found allies in organizations like the American Medical Association, which supported the industry's "we need more  research" message in return for support to suppress medicare and medicaid.

The industry was able to influence the work of other health agencies, Mr. Proctor explained. Some of the scientists who contributed to the 1981 Surgeon General's misguided recommendation on low-tar products "later said they were sorry that they recommended low tar cigarettes because they felt they had been misled."

Not quite True
Exhibit 1237
In January 1968, the men's magazine True had carried an article titled "To smoke or not to smoke: That is still the question." (Exhibit 1237).

Robert Proctor explained this "deeply dishonest" article (which also appeared in National Enquirer) was published without the public knowing about the involvement of the tobacco industry in its development. All but one of the opinions cited in the article were from people who had worked for the tobacco industry.

Curiously this article did not appear on the list of articles assembled on behalf of the tobacco companies by historian David Flaherty. Bruce Johnston noted that it was, however, included in that historian's report prepared for the companies in 1988. The status of that document in this trial will be reviewed by the Court of Appeal in mid-December.

What's a defense counsel to do?

The companies struggled throughout the day to find an effective way of interrupting the testimony.  

Bruce Johnston continued to ask questions within the limits set for him -- "What use could a historian mandated in this file have made of this?" - but the answers from the witness vaulted over such boundaries.

The industry lawyers soon found that their objections to such answers only gave the witness a platform to expand on his replies. Nonetheless, they continued to jump up to make objections that (almost always) went nowhere, and often each company lodged separate objections. (Or, as Justice Riordan wryly put it, "jamais deux sans trois"). 

Doug Mitchell: "This is just not right. This is just asking him to adjectivize the conduct of the tobacco companies." 

Cross Examination 

Late morning, Bruce Johnston asked his last question and Simon Potter (who represents Philip Morris International's Canadian subsidiary) was the first to cross-examine Mr. Proctor.

Mr. Potter is an experienced lawyer, with long experience on the tobacco file (he has represented both Imperial Tobacco and Rothmans, Benson & Hedges). I am told he can be a very effective cross-examiner, and I presume that he knows exactly what he is doing.

But I can't figure out how the answers he drew from Mr. Proctor are helpful to his client. 

In many ways, Mr. Proctor seemed to continue under cross-examination the story that he had begun earlier in the day. He explained why the 'back story' to news was important to an historical perspective, how the industry had recruited historians, and why "common knowledge" was a defective approach to understanding the spread of information. He pointed out the importance of tobacco advertising to the understanding of the harms from smoking.

He shared stories and anecdotes to illustrate his points. He revealed that the Gallup foundation had been appalled by the use of its polling data by the tobacco industry to defend its actions. He used his class-room experiences to describe the different results that come from three different questions - is smoking harmful? - does smoking cause cancer? - are you convinced that smoking is the major cause of cancer? 

Mr. Proctor was able to elaborate on the problems he had with the industry experts, and to point out discrepancies between the secret report produced by David Flaherty for the industry in 1988 and that presented in this trial as his expert opinion. ("Mr. Flaherty says in 1988 that a historian needs to look at history of understanding. There is a big disparity in the two reports.") He criticized their exclusion of addiction and the political power of the industry. "They essentially vanish the industry. It does not appear as an historical agent in their account."

Unlike Monday, when Doug Mitchell's mud-slinging had seemed part of an unpleasant exercise, the occasionally accusatory tone of Mr. Potter's questions seemed to rebound. He tried to suggest that Mr. Proctor had made errors in fact and in judgement in his report on tobacco industry witnesses "Everyone knew but no one had proof: tobacco industry use of medical history expertise in US courts, 1990–2002", but his questions only gave Mr. Proctor the opportunity to explain further the need for transparency and accountability in humanities research, and to expound on the influence of the industry on academe.

Mr. Potter asked Mr. Proctor to reveal his payment as an expert witness, but the witness expressed no concern in providing this financial information. The room was full of very highly paid people (including Mr. Proctor!) but I think this witness was the first person to have been asked to reveal his income from participating in this trial. Given the efforts of the company lawyers to maintain confidentiality of their company's finances in this trial (and their legal struggle to not reveal their lawyers' fees even to their insurers), it seemed a little ironic.

Shortly before the usual ending time, Mr. Potter looked at his list of questions, and asked to quit a little early.

Tomorrow the cross-examination of Mr. Proctor will continue.